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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT RITCHWOOD :
:
Appellant : No. 354 WDA 2020
Appeal from the Judgment of Sentence Entered July 2, 2019
In the Court of Common Pleas of Armstrong County Criminal Division at
No(s): CP-03-CR-0000786-2018
BEFORE: SHOGAN, J., STABILE, J., and KING, J.
MEMORANDUM BY SHOGAN, J.: FILED: MARCH 15, 2021
Appellant, Robert Ritchwood, appeals nunc pro tunc from the judgment
of sentence entered July 2, 2019, in the Court of Common Pleas of Armstrong
County. We affirm.
The trial court summarized the procedural history of this matter, which
stemmed from a domestic altercation at Appellant’s residence on October 8,
2018, as follows:1
[Appellant] was convicted of one count of Aggravated
Assault,1 four counts of Endangering Welfare of Children,2 one
count of Resisting Arrest or Other Law Enforcement,3 and one
count of Disorderly Conduct.4 [Appellant] was sentenced to a
period of 60 to 120 months of incarceration ordered to run
consecutively. [Appellant] filed a timely Post-Sentence Motion
asserting that there was insufficient evidence to convict
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1 For a thorough recitation of the underlying facts of this matter, we direct the
reader to the opinion authored by the trial court. Trial Court Opinion, 4/23/20,
at 2-8.
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[Appellant] and that the verdict was against the weight of the
evidence as to all counts.5
1 18 Pa.C.S.A. [§] 2702(a)(3).
2 18 Pa.C.S.A. [§] 4304(a)(1).
3 18 Pa.C.S.A. [§] 5104.
4 18 Pa.C.S.A. [§] 5503(a)(1).
5 [Appellant’s] Post-Sentence Motion was denied, see
Court Order dated November 4, 2019.
After [Appellant] was sentenced, he filed a series of pro se
petitions with the [c]ourt, while still appearing to be represented
by counsel. To wit, there was no withdrawal of appearance by
counsel, and [Appellant’s] Post-Sentence motion filed by trial
counsel was still pending[2]. [Appellant] filed Motion to Withdraw
Endangering Welfare of Children charge, Motion for Modification
of Sentence (Illegal Sentence), Motion for a New Trial, a Motion
for Ineffective Assistance of Counsel, and a Petition for
Reconsideration. [Appellant’s] Motion of Ineffective Assistance
was treated as a PCRA Petition and was denied without prejudice
because at the time of filing[, Appellant] had not perfected his
post-sentence rights.6 The same day counsel was appointed.
6 See Court Order dated November 4, 2019.
[Appellant] next filed a Post-Conviction Collateral Relief
Motion, pro se, on December 13, 2019. During the rule return
hearing on [Appellant’s] motion, [Appellant’s] counsel requested
that [Appellant’s] appeal rights be reinstated nunc pro tunc, as he
did not perfect any appeal on the issues he raised. Without
objection from the Commonwealth[, Appellant’s] appeal rights
were reinstated. [Appellant] filed a timely Notice of Appeal with
this Court on February 28, 2020[.]
Trial Court Opinion, 4/23/20, at 1-2. Both Appellant and the trial court
complied with Pa.R.A.P. 1925.
Appellant presents the following issue for our review:
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2As previously indicated, the trial court denied Appellant’s post-sentence
motion in an order dated November 4, 2019.
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I. Should [Appellant’s] convictions be reversed as not being
supported by sufficient evidence?
Appellant’s Brief at 4.
Appellant purports to argue that there was insufficient evidence to
support the verdicts in this case. Appellant’s Brief at 9-10. However,
Appellant alleges, “The testimony of the neighbor and the officer was of one
nature, while the testimony of [his wife], the alleged victim, was certainly of
a different nature.” Appellant’s Brief at 9. Specifically, Appellant contends
that “[his wife] denied being a victim and stated that she did not wish to press
charges.” Id. Appellant asks us to reassess the jury’s credibility
determinations as to which testimony is to be believed.
A sufficiency of the evidence review, however, does not include an
assessment of the credibility of the testimony. Commonwealth v. Wilson,
825 A.2d 710, 713-714 (Pa. Super. 2003). Such a claim is more properly
characterized as a weight of the evidence challenge. Id. A challenge to the
weight of the evidence questions which evidence is to be believed.
Commonwealth v. Charlton, 902 A.2d 554, 561 (Pa. Super. 2006). Indeed,
claims challenging the weight of the evidence and sufficiency of the evidence
are clearly distinct. See Commonwealth v. Widmer, 744 A.2d 745 (Pa.
2000) (discussing the distinctions between a claim challenging the sufficiency
of the evidence and a claim that the verdict is against the weight of the
evidence). “A true weight of the evidence challenge concedes that sufficient
evidence exists to sustain the verdict but questions which evidence is to be
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believed.” Commonwealth v. Charlton, 902 A.2d at 561 (quoting
Commonwealth v. Galindes, 786 A.2d 1004, 1013 (Pa. Super. 2001)).
Accordingly, we view this issue, as presented, to be a challenge to the weight
of the evidence offered by the Commonwealth, and we will address it as such. 3
In Commonwealth v. Clay, 64 A.3d 1049 (Pa. 2013), our Supreme
Court set forth the following standards to be employed in addressing
challenges to the weight of the evidence:
A motion for a new trial based on a claim that the verdict is
against the weight of the evidence is addressed to the discretion
of the trial court. Commonwealth v. Widmer, 560 Pa. 308, 319,
744 A.2d 745, 751-[7]52 (2000); Commonwealth v. Brown,
538 Pa. 410, 435, 648 A.2d 1177, 1189 (1994). A new trial should
not be granted because of a mere conflict in the testimony or
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3 To the extent Appellant attempts to present a typical challenge to the
sufficiency of the evidence, we note that such a claim is waived due to
Appellant’s failure to specify in his concise statement, filed pursuant to
Pa.R.A.P. 1925(b), the specific elements of any crime which he deems were
not established beyond a reasonable doubt. See Commonwealth v.
Williams, 959 A.2d 1252, 1257-1258 (Pa. Super. 2008) (finding waiver of
sufficiency of evidence claim where the appellant failed to specify in Pa.R.A.P.
1925(b) statement the elements of particular crime not proven by the
Commonwealth). See also Commonwealth v. Gibbs, 981 A.2d 274, 281
(Pa. Super. 2009) (finding sufficiency claim waived under Williams for failure
to specify which elements of crimes were not proven beyond a reasonable
doubt). Indeed, Appellant’s Pa.R.A.P. 1925(b) statement set forth the
following issue:
1. That the evidence was insufficient to support the conviction of
[Appellant], particularly in light of [Appellant’s] wife, a
Commonwealth witness.
Pa.R.A.P. 1925(b) Statement, 4/8/20, at 1. Likewise, Appellant failed to
specify in his appellate brief the elements of the crimes which were allegedly
not met. Consequently, Appellant’s non-specific claim challenging the
sufficiency of the evidence, which fails to specify the elements of the particular
crimes allegedly not proven by the Commonwealth, is waived. Williams.
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because the judge on the same facts would have arrived at a
different conclusion. Widmer, 560 A.2d at 319-[3]20, 744 A.2d
at 752. Rather, “the role of the trial judge is to determine that
‘notwithstanding all the facts, certain facts are so clearly of greater
weight that to ignore them or to give them equal weight with all
the facts is to deny justice.’” Id. at 320, 744 A.2d at 752 (citation
omitted). It has often been stated that “a new trial should be
awarded when the jury’s verdict is so contrary to the evidence as
to shock one’s sense of justice and the award of a new trial is
imperative so that right may be given another opportunity to
prevail.” Brown, 538 Pa. at 435, 648 A.2d at 1189.
An appellate court’s standard of review when presented with
a weight of the evidence claim is distinct from the standard of
review applied by the trial court:
Appellate review of a weight claim is a review of the
exercise of discretion, not of the underlying question
of whether the verdict is against the weight of the
evidence. Brown, 648 A.2d at 1189. Because the
trial judge has had the opportunity to hear and see
the evidence presented, an appellate court will give
the gravest consideration to the findings and reasons
advanced by the trial judge when reviewing a trial
court’s determination that the verdict is against the
weight of the evidence. Commonwealth v.
Farquharson, 467 Pa. 50, 354 A.2d 545 (Pa. 1976).
One of the least assailable reasons for granting or
denying a new trial is the lower court’s conviction that
the verdict was or was not against the weight of the
evidence and that a new trial should be granted in the
interest of justice.
Widmer, 560 Pa. at 321-[3]22, 744 A.2d at 753 (emphasis
added).
This does not mean that the exercise of discretion by the
trial court in granting or denying a motion for a new trial based on
a challenge to the weight of the evidence is unfettered. In
describing the limits of a trial court’s discretion, we have
explained:
The term “discretion” imports the exercise of
judgment, wisdom and skill so as to reach a
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dispassionate conclusion within the framework of the
law, and is not exercised for the purpose of giving
effect to the will of the judge. Discretion must be
exercised on the foundation of reason, as opposed to
prejudice, personal motivations, caprice or arbitrary
actions. Discretion is abused where the course
pursued represents not merely an error of judgment,
but where the judgment is manifestly unreasonable or
where the law is not applied or where the record
shows that the action is a result of partiality,
prejudice, bias or ill-will.
Widmer, 560 A.2d at 322, 744 A.2d at 753 (quoting Coker v.
S.M. Flickinger Co., 533 Pa. 441, 447, 625 A.2d 1181, 1184-
[11]85 (1993)).
Clay, 64 A.3d at 1054-1055. “Thus, the trial court’s denial of a motion for a
new trial based on a weight of the evidence claim is the least assailable of its
rulings.” Commonwealth v. Diggs, 949 A.2d 873, 879-880 (Pa. 2008).
The trial court addressed this issue as follows:
[Appellant] asserts that there was insufficient evidence,
particularly in light of Mrs. Ritchwood’s testimony. Her testimony
stands in stark contrast to balance of the evidence provided at
trial. Specifically, Officer Bartosiewicz testified that when he
arrived on the scene, he heard Mrs. Ritchwood scream “he
stabbed me. He stabbed me.” Moreover, there was evidence as
to the presence of the children in the vicinity of [Appellant] and
Mrs. Ritchwood during the attack. Ms. Mascio testified that the
children appeared terrified and frightened when they were at her
house, and one of them stated that “he has a knife.”
While Mrs. Ritchwood’s testimony attempts to provide an
alternative explanation for the events, the jury was tasked with
determining the credibility of the witnesses. At no time prior to
the trial did Mrs. Ritchwood offer the explanation for the injuries
that she testified to. Her insistence on not being a victim
contradicts the testimony provided by the officers that were on
the scene. The jurors were instructed to use their common sense
judging the evidence and the facts of the case. The [c]ourt is not
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inclined to sit as a thirteenth juror and substitute its judgment for
that of the jury.
Trial Court Opinion, 4/23/20, at 9-10.
Based upon our complete review of the record, we agree with the trial
court. Here, the jury, sitting as the finder of fact, was free to believe all, part,
or none of the evidence against Appellant. The jury weighed the evidence and
concluded Appellant perpetrated the crimes in question. This determination
by the jury is not so contrary to the evidence as to shock one’s sense of justice.
We decline Appellant’s invitation to assume the role of fact-finder and to
reweigh the evidence. Accordingly, we conclude that the trial court did not
abuse its discretion in refusing to grant relief on Appellant’s challenge to the
weight of the evidence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/15/2021
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